Citation Nr: 0615440
Decision Date: 05/26/06 Archive Date: 06/06/06
DOCKET NO. 03-34 194A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
1. Entitlement to service connection for ischemic heart
disease.
2. Whether new and material evidence has been received to
reopen service connection for mitral valve prolapse with
premature ventricular contractions and thickened mitral
valve.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Francesca Craft, Counsel
INTRODUCTION
The veteran served on active duty from February 1987 to
December 1999.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 2003 rating decision by the
Department of Veterans Affairs (VA) regional office (RO) in
St. Louis, Missouri, which in pertinent part, denied the
veteran's claim for service connection for ischemic heart
disease.
The Board notes that the veteran's August 2003 Notice of
Disagreement must be interpreted to include his disagreement
with the August 2003 reopening and then denial of his claim
of service connection for mitral valve prolapse with
premature ventricular contractions and thickened mitral
valve. The claims file reflects that the RO furnished the
veteran with a Statement of the Case regarding the ischemic
heart disease; however, the claims file does not reveal that
the RO ever furnished the veteran with a Statement of the
Case regarding the claim to reopen service connection for
mitral valve prolapse with premature ventricular contractions
and thickened mitral valve. Accordingly, the Board is
required to remand the latter issue for the issuance of a
Statement of the Case. Manlincon v. West, 12 Vet. App. 238
(1999).
FINDINGS OF FACT
1. The veteran has been adequately notified of all pertinent
laws and regulations and of the evidence necessary to
establish his claim decided herein; all reasonable
development necessary for the disposition of the appeal of
this claim has been completed.
2. Service medical records show numerous complaints of chest
pain diagnosed as atypical chest pain of questionable
etiology, without a definitive diagnosis of heart disease;
post-service, objective cardiac work-ups, including multiple
echocardiograms (ECG), normal pulmonary function tests, a
negative thallium stress test, a negative chest x-ray, a
cardiac laboratory work-up, a Holter monitor, a cardiac
perfusion chemical stress test, a cardiac catheterization and
a normal electrocardiogram (EKG), did not definitively
demonstrate the presence of coronary artery/ischemic heart
disease; and the most probative medical opinion reflects that
the veteran does not have ischemic heart disease.
CONCLUSION OF LAW
Ischemic heart disease was not incurred in or aggravated by
military service and may not be presumed to be of service
onset. 38 U.S.C.A. §§ 1110, 1131, 5100, 5102, 5103, 5103A,
5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309
(2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
The Board finds that VA's duties to the appellant under the
VCAA have been fulfilled. In this regard, the record shows
that the veteran was sent a VCAA notice letter in March 2003,
five months before the initial rating decision. See
Pelegrini v. Principi, 18 Vet. App. 112 (2004). Also see
VAOPGCPREC 7-2004. An additional VCAA notice was sent in
October 2004. The notices collectively
comply with the four requirements in 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b), in that they (1) inform the claimant
about the information and evidence not of record that is
necessary to substantiate the claim; (2) inform the claimant
about the information and evidence the claimant is expected
to provide; (3) inform the claimant about the information and
evidence that VA will attempt to provide on his behalf; and
(4) request the claimant provide any evidence in his
possession that pertains to the claim. The notice letters
addressed all four elements.
During the pendency of this appeal, on March 3, 2006, the
Court issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim. Those five elements include:
1) veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R.
§ 3.159(b) require VA to review the information and the
evidence presented with the claim and to provide the claimant
with notice of what information and evidence not previously
provided, if any, will assist in substantiating or is
necessary to substantiate the elements of the claim as
reasonably contemplated by the application. Id.
Additionally, this notice must include notice that a
disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded.
Id.
In the present case, the veteran was only informed of the
existence of a disability and the connection between the
veteran's service and the disability elements. Despite the
exclusion of three elements, the Board finds no prejudice to
the veteran in proceeding with the issuance of a final
decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993)
(where the Board addresses a question that has not been
addressed by the agency of original jurisdiction, the Board
must consider whether the veteran has been prejudiced
thereby). In that regard, the veteran's status as an
honorably discharged veteran was previously established.
Since the Board finds that service connection for ischemic
heart disease is not warranted in this appeal, the degree of
disability and an effective date for service connection for
ischemic heart disease are not issues before the Board. In
sum, the lack of notice has no prejudicial consequence.
VA also has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A. VA has obtained all indicated medical records
available or expended reasonable efforts to do so. VA
scheduled the veteran for VA examinations, to address the
nature and etiology of the veteran's claimed ischemic heart
disease. There is sufficient medical evidence of record to
make a decision on the claim on appeal.
Law and Regulations
Under the basic law, service connection may be established
for a disability resulting from disease or injury incurred or
aggravated by active service. 38 U.S.C.A. §§ 1110, 1131
(West 2002). In order to show a chronic disease in service
there must be a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time. 38 C.F.R. § 3.303(b)
(2005). If chronicity in service is not established, a
showing of continuity of symptoms after discharge is required
to support the claim. Id. Service connection may be granted
for any disease diagnosed after discharge, when all of the
evidence establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
Service connection may be presumed for cardiovascular renal
disease if it is manifested to a degree of 10 percent within
one year following separation from service. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307,
3.309 (2005).
When after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding the
degree of disability, such doubt will be resolved in favor of
the claimant. 38 C.F.R. § 4.3 (2005).
Analysis
The Board has thoroughly reviewed all the evidence in the
veteran's claims folder, which includes: his service medical
records, lay statements, VA records for treatment from 2000
to 2004, VA examination reports and his contentions, as
presented in hearing testimony and argument. Although the
Board has an obligation to provide reasons and bases
supporting this decision, there is no need to discuss, in
detail, the extensive evidence submitted by the veteran or on
his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81
(Fed. Cir. 2000) (the Board must review the entire record,
but does not have to discuss each piece of evidence). The
Board will summarize the relevant evidence where appropriate,
and the Board's analysis below will focus specifically on
what the evidence shows, or fails to show, on the claim. See
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law
requires only that the Board address its reasons for
rejecting evidence favorable to the claimant).
The veteran contends that the chest pains he experienced in
service are related to a current heart disability, ischemic
heart disease. A review of the record indicates that service
connection for ischemic heart disease is not warranted in
this case because the evidence fails to establish a current
disability of ischemic heart disease.
The United States Court of Appeals for Veterans Claims (the
Court) has held that in order to prevail on the issue of
service connection, there must be medical evidence of a (1)
current disability; (2) medical, or in certain circumstances,
lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus
between the claimed in-service disease or injury and the
present disease or injury. Hickson v. West, 12 Vet. App.
247, 253 (1999).
Beginning first with the issue of current disability, the
evidence conflicts. A diagnosis of ischemic heart disease,
also known as coronary heart disease appears at two places in
the record. The veteran's primary care physician makes the
diagnosis in September 2002; however, the clinician does not
state how he arrived at the diagnosis. He does not reference
the results of any objective cardiac testing. A diagnosis of
coronary artery disease also appears in a December 2003
compensation examination for joints. There is no indication
of how the examining clinician arrived at the diagnosis; it
does not appear that he based his diagnosis on a review of
all recent objective cardiac diagnostic tests. The VA
examiner in August 2004 acknowledges the diagnosis of
coronary artery disease by another clinician, but points to
several tests to refute the diagnosis. The Board finds his
opinion as to the proper diagnosis of the veteran's atypical
chest pains to be more probative, i.e., more credible than
the diagnosis of the joints examiner and the treating
physician. See Owens v. Brown, 7 Vet. App. 429 (1995) (the
Board is free to favor one medical opinion over another
provided it offers an adequate basis for doing so).
The Board finds the opinion of the August 2004 examiner to be
more probative than the treating physician's because the VA
examiner had possession of the veteran's claims file and he
reviewed it in conjunction with his examination of the
veteran. It is not evident from the treating physician's
note that he reviewed service medical records and all
pertinent medical evidence on file. Notably, the treating
physician arrived at his diagnosis and opinion prior to the
veteran undergoing a cardiac catheterization, which was
negative. It is also significant that the August 2004
examiner is a cardiologist, which indicates his specialty is
cardiology, unlike the treating physician whose title is
"primary care physician" and the VA joints examiner whose
title is "staff physician." It should also be recognized
that the "treating physician rule" that gives the opinions
of treating physicians greater weight in evaluating medical
evidence has been rejected in the context of veterans'
benefits claims. See Van Slack v. Brown, 5 Vet. App. 499,
502 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993).
In regard to the December 2003 VA examiner, it is noteworthy
that his examination was for joints, not a heart disability.
Consequently, he offered no findings related to the
cardiovascular system, other than blood pressure and pulse.
While he does reference an abnormal chemical stress test in
the veteran's medical history, there is no evidence that he
considered the normal cardiac catheterization, laboratory
results, Holt monitor, ECGs, and EKGs, before arriving at his
diagnosis. In summary, the Board finds the opinion of the
August 2004 VA examiner has significantly greater probative
value than that of the veteran's primary care doctor and the
VA joints examiner. Based on the August 2004 VA examiner's
diagnosis of costochondritis with no ischemic heart disease,
the Board concludes that there is no current disability.
Because there is no current diagnosis of ischemic heart
disease, the medical opinion expressed by the veteran's
primary care physician in September 2002 that such disease is
related to service is rendered moot. As the evidence in this
matter clearly preponderates against a current disability of
ischemic heart disease, service connection for that
disability is not warranted. Brammer v. Derwinski, 3 Vet.
App. 223, 225 (1992) (absent proof of present disability
there can be no valid claim).
ORDER
Service connection for ischemic heart disease is denied.
REMAND
In August 2003, when the veteran initiated an appeal of the
issue of entitlement to service connection for ischemic heart
disease, the veteran also filed a timely notice of agreement
to the August 2003 rating decision which denied the veteran's
claim to reopen service connection for mitral valve prolapse
with premature ventricular contractions and thickened mitral
valve. While the RO issued a Statement of the Case and a
Supplemental Statement of the Case on the issue of
entitlement to service connection for ischemic heart disease,
the RO did not issue a Statement of the Case addressing the
issue of whether new and material evidence had been received
to reopen service connection for mitral valve prolapse with
premature ventricular contractions and thickened mitral
valve.
When there has been an initial RO adjudication of a claim and
a Notice of Disagreement as to its denial, the claimant is
entitled to a statement of the case, and the RO's failure to
issue a statement of the case is a procedural defect
requiring remand. Manlincon, 12 Vet. App. 238 (1999).
Consequently, the Board finds that in view of the timely
Notice of Disagreement filed by the appellant in August 2003
as to the issue of whether new and material evidence had been
received to reopen service connection for mitral valve
prolapse with premature ventricular contractions and
thickened mitral valve, the Board is required to remand this
claim for issuance of an appropriate Statement of the Case.
In Kent v. Nicholson, No. 04-181 (U.S. Vet. App. March 31,
2006), the Court addressed directives consistent with the
VCAA with regard to new and material evidence.
The Court stated that in order to successfully reopen a
previously and finally disallowed claim, the law requires the
presentation of a special type of evidence-evidence that is
both new and material. The terms "new" and "material"
have specific, technical meanings that are not commonly known
to VA claimants. Because these requirements define
particular types of evidence, when providing the notice
required by the VCAA it is necessary, in most cases, for VA
to inform claimants seeking to reopen a previously and
finally disallowed claim of the unique character of evidence
that must be presented. This notice obligation does not
modify the requirement that VA must provide a claimant notice
of what is required to substantiate each element of a service
connection claim. See Dingess/Hartman, 19 Vet. App. 473
(2006).
In other words, VA must notify a claimant of the evidence and
information that is necessary to first reopen the claim and
then to establish entitlement to the benefit sought by the
claimant underlying his claim to reopen.
The content of the notice for a claim to reopen service
connection based on new and material evidence is influenced
by the evidence that was of record at the time of the last
denial. In order to provide claimants with a meaningful
opportunity to participate in the adjudication of their
claims, which was the underlying legislative intent of the
VCAA notice requirements, within the context of a claim to
reopen, the Secretary must look at the bases for the denial
in the prior decision and respond with a notice letter that
describes what evidence is necessary to substantiate the
element(s) of service connection that were found insufficient
in the previous denial. Therefore, the question of what
constitutes material evidence to reopen a claim for service
connection depends on the basis on which the prior claim was
denied.
The veteran in this matter was not provided specific notice
of what constitutes material evidence in his claim to reopen
service connection for mitral valve prolapse with premature
ventricular contractions and thickened mitral valve. The
failure to provide notice of what constitutes material
evidence would generally be the type of error that has the
natural effect of producing prejudice because it would
constitute a failure to provide notice to a claimant of a key
element of what it takes to substantiate a claim to reopen.
Without such notice, a claimant effectively would be deprived
of an opportunity to participate in the adjudication process
because he or she would not know what evidence was needed to
reopen his or her claim. Accordingly, the issue of whether
new and material evidence has been received to reopen service
connection for mitral valve prolapse with premature
ventricular contractions and thickened mitral valve must be
remanded for the claimant to be furnished specific
notification of the reason(s) for the prior final denial and
of what constitutes material evidence.
Accordingly, the case is REMANDED for the following action:
1. The AMC should review the record and
ensure compliance with all notice and
assistance requirements set forth in the
VCAA and subsequent interpretive
authority. See, e.g., Pelegrini, 18 Vet.
App. 112 (2004); VAOPGCPREC 7-2004;
Mayfield v. Nicholson, 19 Vet. App. 103
(2005), rev'd on other grounds, No. 05-
7157 (Fed. Cir. Apr. 5, 2006). A notice
consistent with 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b)(1) must:
(1) inform the claimant about the
information and evidence not of record
that is necessary to substantiate the
claim; (2) inform the claimant about the
information and evidence that VA will seek
to provide; (3) inform the claimant about
the information and evidence the claimant
is expected to provide; and (4) request
that the claimant provide any evidence in
the claimant's possession that pertains to
the claim.
The VCAA notice should include an
explanation as to the information or
evidence needed to establish a disability
rating and effective date for the claim on
appeal, as outlined by the Court in
Dingess/Hartman, 19 Vet. App. 473 (2006)
(requiring VCAA notice to include the five
elements of a service connection claim:
(1) veteran status; (2) existence of a
disability; (3) a connection between the
veteran's service and the disability; (4)
degree of disability; and (5) effective
date of the disability.).
The VCAA notice should include specific
notice of why the claim was previously
denied and what constitutes material
evidence for the purpose of reopening the
claim for service connection for mitral
valve prolapse with premature ventricular
contractions and thickened mitral valve.
Kent, No. 04-181 (U.S. Vet. App. March 31,
2006).
2. Thereafter, the AMC should ensure that
no other notification or development
action, in addition to that directed
above, is required. If further action is
required, the AMC should undertake it
before further adjudication of the claim.
3. Thereafter, the RO should again
review the record. If the benefit sought
on appeal remains denied, the appellant
and his representative should be
furnished a Statement of the Case with
respect to the issue whether new and
material evidence had been received to
reopen service connection for mitral
valve prolapse with premature ventricular
contractions and thickened mitral valve,
and given the opportunity to respond
thereto.
4. The RO is reminded that any Statement
of the Case issued with respect to the
claim to reopen service connection for
mitral valve prolapse with premature
ventricular contractions and thickened
mitral valve must contain all applicable
laws and regulations, and the appellant
must be advised of the time in which to
perfect his appeal. The appellant is
admonished that the Board will not
consider this claim without the filing of
a timely substantive appeal.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome as to this issue. The appellant need take no action
until otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
____________________________________________
BARBARA B. COPELAND
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs